Core questions in the abortion access debate

U.S. and Canadian laws defining
when human personhood begins

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U.S. Federal Law:

Public Law 108-212 "The Unborn Victims of Violence Act of 2004," a.k.a.
Laci
and Connor's Law recognizes that an unborn embryo or fetus can be a legal victim
if it is injured or killed during the commission of a federal crime of violence.
There are over 60 such crimes defined. The law was named after a mother, Laci
Peterson, and her fetus, Connor Peterson, who were murdered circa 2002-Christmas
by Scott Peterson in California. The law defines "a child in utero" as any "member of the species homo sapiens, at any
stage of development, who is carried in the womb."

The bill passed the House by a vote of 254 to 163 on 2004-FEB-26. It passed the Senate
by a vote of 61 to 38 on 2004-MAR-25. President George W Bush signed it into law
on 2004-APR-01. He said:

"Any time an expectant mother is a victim of violence, two lives are in
the balance, each deserving protection, and each deserving justice. If the
crime is murder and the unborn child's life ends, justice demands a full
accounting under the law."

Senator John Kerry (D-MA), who ran against Bush in 2004, voted against the bill.
He said:

"I have serious concerns about this legislation because the law cannot
simultaneously provide that a fetus is a human being and protect the right
of the mother to choose to terminate her pregnancy."

Text of the law: Section 1841 "Protection of unborn children" states:

(a)(1) Whoever engages in conduct that violates any of the provisions of
law listed in subsection (b) and thereby causes the death of, or bodily
injury (as defined in section 1365) to, a child, who is in utero at the time
the conduct takes place, is guilty of a separate offense under this section.

(2)(A) Except as otherwise provided in this paragraph, the punishment
for that separate offense is the same as the punishment provided under
Federal law for that conduct had that injury or death occurred to the unborn
child's mother.

(B) An offense under this section does not require proof that--

(i) the person engaging in the conduct had knowledge or should have had
knowledge that the victim of the underlying offense was pregnant; or
(ii) the defendant intended to cause the death of, or bodily injury to,
the unborn child.

(C) If the person engaging in the conduct thereby intentionally kills or
attempts to kill the unborn child, that person shall instead of being
punished under subparagraph (A), be punished as provided under sections
1111, 1112, and 1113 of this title for intentionally killing or attempting
to kill a human being.

(D) Notwithstanding any other provision of law, the death penalty shall
not be imposed for an offense under this section. 1

The law provides an exception for instances of
abortion or other medical procedure.

There is a very similar law contained in the military justice system. 1

U.S. State Laws:

According to the National Right to Life Committee, on 2011-MAY-27, 27
states have homicide laws that recognize that an unborn embryo or fetus "during
any stage of development" can be a victim: AL, AK, AZ, GA, ID, IL, KS, KY,
LA, MI, MN, MS, MO, NE, NC, ND, OH, OK, PA, SC, SD, TN, TX, UT, VA, WV, and WI. Many of
these laws cover only those embryos in the womb, and not pre-embryos after
fertilization and before implantation.

Ten states have laws that recognize that an unborn embryo or fetus during the
later stages of pregnancy can be a victim: AR, CA, FL, IN, MD, MA, NV, RI, and WA. These laws typically apply after quickening (when the pregnant woman first
senses fetal movement), or viability (when the fetus can sustain itself outside
the mother's womb), or at some specific point in pregnancy: e.g. 7 to 8 weeks,
or 12 weeks.

In the state of New York, one law states that the killing of an "unborn
child" at twenty-four weeks or more gestation is homicide. However, another
law defines a victim of homicide as a "human being who has been born and is
alive." 2

Scott Peterson was convicted in California of a double homicide in the deaths
of his wife and fetus. He was given the death penalty during 2005-MAR.

Canadian law:

The Criminal Code of Canada defines many legal matters across all the
provinces and territories of Canada. It is typically up to the province or
territory to enforce the criminal code. The pertinent clause is #223 in Part
VIII "Offences against the person and reputation." It states
that a fetus becomes a human being only when it is born. However, if a person
injures an embryo or fetus so that it dies after being born, then that person is
guilty of homicide:

(1) When child becomes human being: A child becomes a human being
within the meaning of this Act when it has completely proceeded, in a living
state, from the body of its mother, whether or not (a) it has breathed; (b)
it has an independent circulation, or (c) the navel string is severed.

(2) Killing child: A person commits homicide when he causes
injury to a child before or during its birth as a result of which the child
dies after becoming a human being." 3

Recent court cases involving injury or death of a
fetus include:

1981: Sandra Price stabbed Bernice
Daniels in the abdomen, inducing a premature birth. The child lived for only
19 minutes before dying as a result of the stabbing. Prince was convicted of
causing bodily harm to the mother and manslaughter in the death of the
child.

1988: The Supreme Court of Canada
declared the Canadian abortion law unconstitutional. Parliament was never
able to pass a new law, and so the country remains to this day without any
law restricting abortion. Theoretically, a woman can legally obtain an
abortion up to the point where the woman is giving birth. In practice,
medical associations' regulations prohibit abortions after the 20th week of
pregnancy, except in very unusual and rare circumstances.

1989: Jean-Guy Tremblay attempted to
prevent his "friend" Chantal Daigle from obtaining an abortion. She was
repeatedly assaulted. The Supreme Court of Canada ruled that he could
not stop the abortion. This established a precedent that a fetus is without
a legal status.

1993: Cynthia Dobson was involved in an
automobile accident. He fetus was injured and delivered the same day by
Caesarian section. He developed cerebral palsy. The child's grandfather sued
the mother for negligence in driving. The court decided that the mother was
not responsible for the injuries because the child was not born at the time
of the accident.

1996: Brenda Drummond shot herself in
the vagina with a pellet gun. Two days later, her son was born with brain
injuries. The court ruled that Drummond could not be charged with attempted
murder because the child was a fetus at the time of the incident.

2007: Aysun Sesen died from stab wounds
and her female fetus was stillborn during a subsequent Caesarian Section.
Her husband was charged only with the murder and aggravated assault of his
wife. 4

Disclaimer:

This essay provides general
information only. Do not rely on it to determine your legal rights or status. We
recommend that you seek legal advice from a qualified attorney before making
personal legal decisions.